ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 07-15/13
DATE: 2014-09-25

RE: Bhagria v. Sharma

BEFORE: Lemon, J.

COUNSEL:
Wiffen, Mark, for the Applicants
Klaiman, Mark, for the Respondents

HEARD: July 25, 2014

ENDORSEMENT

INTRODUCTION

1The leadership of the Hindu Sabha temple has been involved in litigation over the control of the temple for more than 13 years. Most of the litigation has involved the applicant Mr. Bhagria. This is another step in that saga.

THE ISSUE

2Mr. Bhagria and Mr. Sanjiv Sharma wish me to set aside a by-law passed at a general meeting of the temple on September 24, 2007. That by-law was effectively a new constitution for the temple. If they are successful with that request, they ask that I determine a new temple procedure for memberships and elections as set out in their Notice of Application.

3They submit that there were forged membership applications that led to an invalid membership meeting in June of 2007. Further, they submit that invalid proxies were used at a September 2007 meeting; therefore the by-law that was passed at that meeting was invalid. Finally, they submit that the present executive has been involved in restricting membership to only those approved by them. If true, those actions would undermine the authority of the present Board of Management.

BACKGROUND

4It should be noted that Sanjiv Sharma is an applicant and Parveen Sharma is one of the respondents. I shall refer to both using their status in the litigation and their full names when I refer to them in these reasons.

5This application (commenced in Toronto but transferred to Brampton) is related to an ongoing proceeding in Brampton that commenced in 2008. All of the litigation is related to who should be managing Hindu Sabha. Much of the litigation involves leadership issues in 2007 particularly, but not exclusively, relating to the membership meetings of June 27, 2007 and September 24, 2007.

6Mr. Bhagria and Mr. Sanjiv Sharma submit that they have brought this application as there has been no annual meeting of the membership of Hindu Sabha since 2008, no election of a new Board of Directors since June 2007 and the financial statements of Hindu Sabha have not been distributed to the membership since 2008.

7Mr. Bhagria was president of Hindu Sabha until March of 2007. He has been aware of or involved in the Brampton litigation since its commencement. Justices Durno (May 4, 2007), Herold (May 18, 2007), Seppi (June 19, 2007), Baltman (June 25, 2009) and I have made orders in that action.

8My first order relating to this matter was on January 25, 2008. I confirmed that the board elected in June of 2007 should be the interim board pending the litigation. Since then, as the case supervision judge, I have heard motions and made orders too numerous to mention.

9On June 25, 2009, Baltman J. enjoined a meeting to elect a new board. Accordingly, my order has remained in place pending the resolution of the Brampton action. As a result, there have been no general meetings, no financial statements presented, no elections held. There appears to have been problems with quorum.

10Between the motions brought before me, it appeared to me that negotiations were always ongoing in the background. Indeed, at one point, I requested and obtained affidavits from the litigants confirming that they did not wish me to proceed with the matter more expeditiously; they wished time for resolution.

11The Brampton litigation has apparently now been settled to a large extent. Those terms of settlement would allow for the calling of new elections so that the temple and its adherents could move on. This application was argued the same day as those minutes were filed. That resolution, however, is held up pending my determination of this application.

12The only requests in the Notice of Application that were before me were with respect to the validity of the September 2007 meeting and a new membership and election procedure. The issues of improper use of funds and quorum were not advanced in argument. I presume that they are to be withdrawn or dismissed.

13The applicants submit that their:

“primary objective in this application is for the court to direct that an election be called as soon as practicable. The applicants have proposed a process for the conduct of that election, including a fair process for establishing a list of voting members, which they believe best serves the interests of Hindu Sabha and will prevent any member from making allegations that the current Interim Board is manipulating or controlling the outcome of the election – allegations that have troubled the past several elections of Hindu Sabha’s management”.

MANAGEMENT ISSUES

14The opening of this story begins with Mr. Bhagria’s letter of June 16, 2006. At that time, he was President of a 15 member Board of Directors. He chose to write to the Board with the following declaration:

I have received letters from two Directors of the Board and a member of Hindu Sabha asking me to call the elections of Hindu Sabha Board.

As you are aware that the few of the monthly meetings of Board of Directors consecutively could not be conducted, as we did not have the full quorum, I feel for the best interest and smooth running of Hindu Sabha the following steps have to be taken:

1. Dissolve the Board of Directors of Hindu Sabha

President to take over to run the day-to-day activities of the Temple.

So, please, take a note that effective immediately the Board of Director’s of Hindu Sabha is dissolved and you are ceased to be a director from now on.

I shall call the elections for the new Board as soon as possible.

However, I shall be asking some directors, if they wish, to continue to help voluntarily to run the daily activities of the temple efficiently.

15Mr. Bhagria’s unilateral move to place himself in control led to heated general meetings and litigation.

16In Mr. Bhagria’s April 22, 2014 affidavit, he says that he is not satisfied with the proposed settlement and new elections. There, he says:

44. First, the Minutes of Settlement merely provide that the settling defendants agree that the current Board of Management is at liberty to call an election. It does not state that the Board of Management will call an election. It further does not state that some other party may object to an election being called or otherwise disrupting the calling of an election.

45. More significantly, the settlement as a whole only binds Hindu Sabha and the four settling defendants to the Sharma Action. It has no broader application.

46. The intent of this Application is to have a court-directed resolution to internal governance litigation that has plagued our otherwise wonderful temple for so many years, It is my firmly held view that without a court order in this Application, a private settlement between Hindu Sabha and four of the defendants in the Sharma Action will have no lasting positive impact on Hindu Sabha. Indeed, even if there were an election called as a result of that settlement, it would be on terms controlled by the existing directors, which could again lead to the concerns that Justice Baltman found were important enough to prevent an election from proceeding.

17It may appear that Mr. Bhagria seeks, for good reasons or bad, control of Hindu Sabha, and intends to carry on the litigation going forward regardless of the outcome of this piece of litigation. It is my hope, however, that his motives are more accurately set out in his first affidavit:

55. The infighting among the directors and their conduct has greatly affected the congregation. The Hindu community does not want to get involved in a temple that many now see as dysfunctional.

56. I am bringing this application in good faith with the best interests of Hindu Sabha in mind. I am convinced that the vast majority of the congregation and membership of Hindu Sabha is supportive of a “once-and-for-all” resolution to the issues that have consumed Hindu Sabha for much of the past 16 years.

18I shall endeavour to bring that dysfunction to an end with this ruling. In any event, by bringing this application, Mr. Bhagria and Mr. Sharma will be bound to comply with this ruling whatever they may think of the result.

WAS THE JUNE 27, 2007 MEETING VALID?

19The meeting that elected the present board was held June 27, 2007. Two accounting firms supervised it. The meeting was allowed to proceed pursuant to the order of Justice Seppi; she dismissed Mr. Bhagria’s injunction request to stop the meeting. My order of January 2008 maintained that Board pending the Brampton action. This application does not seek to set aside that meeting and the election of the directors at that time. It does not attempt to set aside my orders or the order of Seppi J. Rather, the applicants seek only to set aside the passing of By-Law No. 7 at the meeting called by that board. Accordingly, I can start with the fact that the present board is properly elected.

20In their affidavits, however, the applicants attacked the meeting of June 27 and I shall therefore resolve that, now irrelevant, issue.

21In 2012, Mr. Bhagria became aware that many of the membership forms used to gain admission to membership in 2007, 2008, and 2009 were forged. He therefore submits that the purported governing by-law of September 2007 was done through invalid means and in reliance on forged memberships or proxies. Mr. Bhagria and Mr. Sharma submit that there are at least 34 members of Hindu Sabha who have likely had their signatures forged for the purpose of submitting forms for memberships in one or more of 2007, 2008 and 2009. As such, there is evidence indicating that the members who voted for the directors in June 2007 were not all valid members of Hindu Sabha. This then raises concerns by the applicants about the validity of all the affairs of Hindu Sabha carried out since June 27, 2007.

22In order to support this complaint, the applicants rely upon a handwriting expert’s opinion that there appears to have been 34 forgeries out of 37 samples provided. Further investigations by the applicants found that family members, with the consent of the member, had signed three. Taking the applicants’ evidence at its highest, there were 31 forgeries over the period of 2007 to 2009. This meeting was held in June of 2007. This evidence leaves open the question of how many were improperly signed for the 2007 meeting. The report of the accountants that oversaw the June 2007 meeting confirmed a membership of 315 voting members. This evidence leaves open, whether, even if all 31 forgeries were in place for the 2007 meeting, there would have been any effect on the election result. The report of Horwath, Orenstein LLP states that the votes were completed by acclamation.

23I am required to make a finding of facts on a balance of probabilities. The onus is upon the applicants to persuade me on a balance of probabilities that the meeting result should be set aside because forged membership forms were in place. I am not persuaded that is the case. The evidence, at best, shows that there is only a possibility that the result was affected by forged memberships. I find that the meeting and the result of the vote was valid.

WAS THE SEPTEMBER 24, 2007 MEETING AND BY-LAW 7 VALID?

24This is the meeting when the new constitution (By-Law No. 7) was passed by the membership. This is the core of the dispute at the present time.

25The applicants concede that the necessary notice was sent out in time to comply with the applicable by-law.

26However, the applicants submit that there were only 41 members at the meeting. The respondents submit, through the evidence of the respondent, Mr. Parveen Sharma and two others, that there were more than 400 members. Again, the applicants bear the onus of persuading me on a balance of probabilities of the numbers alleged. I cannot make that determination on simple affidavits. Without a finding of credibility, the applicants cannot meet that threshold and I therefore proceed with the view that there were more than 40 members present.

27Be that as it may, the applicants’ principle argument with respect to the September meeting is with respect to the use of proxies. Mr. Bhagria says that the September 24, 2007 meeting proceeded with only 41 members present and that the board relied on proxies that had been used at the June 27, 2007 meeting to elect the new directors of Hindu Sabha. If so, then the process used to adopt By-Law No. 7 was invalid. The applicants submit that the proxies relied on to pass the resolution adopting By-Law No. 7 had not been cast for the purpose of adopting a new by-law; they were cast to vote for the directors on June 27, 2007. For this reason alone, By-Law No. 7 ought to be declared invalid.

28In his second affidavit, Mr. Bhagria states that:

“when members signed proxies in June 2007, they would have understood that they were signing them to vote in an election at the June 27, 2007 meeting; they had no idea when they signed them that a few months later a radically new By-Law would be proposed and put to a vote also. While I do not have a copy of any of the June proxies (I understand that they have been destroyed, although I cannot confirm this), I believe it is a safe assumption that they contained language similar to those used for the September meeting – the proxies were to be used at the specific meeting for which the proxy was signed, “and at any and all adjournments thereof”.

29In response, the respondents state that volunteers counted the votes and there were no objections to the proxies. The proxies clearly show the date for the meeting for which they are to be used. If there had been improper proxies, one would expect objections.

30The record is barren of anything to support that the June 27 proxies were used in September other than Mr. Bhagria’s assertion, despite the fact that he acknowledges that they were destroyed after the meeting.

31There is no evidence that persuades me on a balance of probabilities that June proxies were used in September. Accordingly, on this evidence, I find that By-Law 7 was properly passed.

HAS THE BOARD CONTROLLED MEMBERSHIPS?

32Mr. Bhagria complains that the present management is restricting memberships. To support that allegation, the applicant, Sanjiv Sharma, deposed that he was denied an annual membership renewal form. He submits that this occurred from 2008 to 2013. The respondents deny that.

33I am not persuaded that the applicants have shown that membership is being restricted by the present Board.

34Even if I were to accept the evidence of Mr. Sanjiv Sharma, he is the only person to allege that his membership has been restricted. That would not lead to setting aside this Board.

35As set out above, relying only on this affidavit evidence, the applicants have not persuaded me on a balance of probabilities that I should accept the evidence of the applicant, Mr. Sanjiv Sharma over that of the respondents.

36This issue raises another matter that undercuts the applicants’ entire position. Mr. Sharma was able to obtain a membership in 2013. He was provided with a receipt for his membership fee from Mr. Bhagria. And yet, Mr. Bhagria had no authority to do that. He was not a member of the Board at that time. Mr. Bhagria states:

6. With respect to my signature on the receipt that was attached as Exhibit A to the Affidavit of Sanjiv Sharma, I confirm that is my signature. When I signed Mr. Sharma’s donation receipt, I verily believed I had authority to do so as a volunteer and past president, Trustee and Chairman of Trustee Board of Hindu Sabha. I signed hundreds of donation receipts on behalf of Hindu Sabha in 2013, and no one had ever questioned my authority to do so until now.

37It is simply breathtaking to have Mr. Bhagria complaining that others have not followed the right procedures while simply proceeding to sign whatever documents he wishes despite his lack of position. Given his longstanding position with Hindhu Sabha, his plea of ignorance is untenable.

38I cannot find that the present Board has excluded eligible members.

39Since I have upheld General Operating By-Law No. 7, I need not deal with any future procedure as requested by the applicants.

RESULT

40Accordingly, the application is dismissed.

41If I am wrong in my assumption that I have dealt with all outstanding issues, counsel shall arrange a conference call with me within 30 days to fix a timetable for the completion of those matters. If I am correct that this completes the matter, that confirmation shall be included in the costs submissions.

42If the parties cannot otherwise resolve the issue of costs, written submissions may be made to me. The respondents shall make their submissions within the next 15 days and the applicants shall respond 15 days thereafter. Both submissions will be no more than three pages in length not including any bills of costs or offers to settle.

43With the settlement of the Brampton action, it appears that there is every reason for an election to be called in the immediate future. I hope that the members of Hindu Sabha can move forward with a sensible election and procedures. While I cannot make a determination of who the various liars have been or what particular issues they may have lied about, there is no doubt that individuals involved in this litigation have, from time to time, lied to this court in an effort to gain control of this religious institution. Those efforts and lies have only served to take money away from the membership and their good causes for the selfish interests of the litigants.

44While I cannot make an order to this effect, it would seem to me that it would be in the best interests of Hindu Sabha that none of the individuals who have appeared in this or the Brampton litigation over the last seven plus years should stand for office. Those who have been telling the truth have not been able to lead with sufficient moral suasion to resolve these issues. Those who have been lying, are, of course, singularly unfit to run this organization.

Lemon, J.